Article 29 Spanish Criminal Code: Accomplices

Article 29 of the Spanish Criminal Code contains a single sentence: accomplices are those who, not falling within the preceding article, cooperate in the execution of the act by prior or simultaneous acts. Its brevity conceals its importance, because under article 63 an accomplice receives the penalty one degree lower than a principal. In any case involving several accused, the question whether a client is a principal, a necessary cooperator or an accomplice is ordinarily worth more than any other argument available.

Wording of Article 29 of the Spanish Criminal Code

Elements of the offence

1. Cooperation in the execution of the act by another. There is no complicity without a principal offence actually committed or attempted.
2. That the contribution is prior to or simultaneous with the execution. Subsequent assistance is not complicity but, where it fulfils the requirements, the separate offence of concealment under article 451.
3. That the contribution is not one without which the offence would not have been carried out, since that would make the accused a necessary cooperator under article 28.
4. Knowledge of the offence in which the accused is cooperating, at least in its general features. A person who provides assistance without knowing its purpose is not an accomplice.

Defence strategy

Establishing the secondary character of the contribution. The argument is developed by identifying what the offence required and showing that the accused’s contribution was not among those requirements: that another participant could have performed it, that it was available elsewhere, or that the offence would have proceeded without it. Concrete evidence about the roles actually performed is what persuades, and it is obtained from the surveillance material and the accounts of the co-accused.

Absence of knowledge of the purpose. Complicity requires knowledge of the offence assisted. A person who lent a vehicle, transported a package, received a transfer or accompanied another without knowing the purpose is not an accomplice, and where the assistance was of a kind ordinarily lawful, the burden of establishing knowledge is a real one. The defence documents the ordinary relationship between the parties and the ordinary character of the assistance.

Distinguishing subsequent conduct. Assistance given after the offence is complete is not complicity. Where the accused only later hid property, gave a false account or helped another to leave, the applicable provision is article 451, which carries a materially lower penalty and which exempts certain relatives. Prosecutors habitually charge complicity in the principal offence in these situations, and the correct classification is argued in the pleadings.

The cumulative effect of the reductions. The reduction of one degree for complicity operates together with the reductions for attempt and with the mitigating circumstances, and the order of application matters. Where complicity in an attempted offence is established, together with reparation or an addiction, the resulting bracket is frequently two degrees below the starting point, which is what makes the classification argument the most valuable part of the defence.

• Article 28: principals and cooperators
• Article 16: attempt and withdrawal
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.